Point of Law: It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement.

ORDER :

1. Heard Mr. Shivang Shah, learned advocate appearing for the petitioner and Mr. Utkarsh Sharma, learned AGP on behalf of the respondent-State. Though served none appears for the respondent no. 3 Nagarpalika.

2. Rule. Mr. Sharma, learned Assistant Government Pleader for the respondent - State waives service of notice of Rule.

3. On 21.09.2021, this Court has passed the following order:

“Heard learned Advocate Ms. Dhara M. Shah for the petitioner and learned AGP Mr. Uttkarsh Sharma for the respondent No.1. By way of this petition, the petitioner raises a grievance that while the petitioner had retired in the month of May, 2018, the respondents had deducted an amount of Rs. 3,24,000/- from her retiral dues on the ground that the same had been overpaid to the present petitioner.

Learned Advocate Ms. Shah would submit that undoubtedly the entire amount has been recovered, but at the same time the fact of the present petitioner being a Class-IV employee could not have been ignored. Furthermore, learned Advocate would submit that by the time the recovery had been initiated, the respondents were under an obligation not to recover such amount from the petitioner as per the law laid down by the Hon'ble Supreme Court in case of State of Punjab vs. Rafiq Masih reported in AIR 2015 SC 696.

Learned Advocate would further draw the attention of this Court to an order dated 08.03.2019 in Special Civil Application No.20047 of 2018, in case of similarly situated employee, where the recovery had been set aside by this Court.

Having regard to the submissions made by learned Advocate Ms. Shah, issue Notice returnable on 26.10.2021. Direct service is permitted.”

4. The petitioner challenges the order dated 31.05.2018 by which the respondent Nagarpalika has sought recovery from the petitioner on the ground that the amount of Dearness Allowance (DA) of the 5th Pay Commission has been paid higher than the actual amount. The same mistake was brought to their notice at the time of audit and the report was placed by the concerned officer and, therefore, the order dated 31.05.2018 is passed.

5. Learned advocate Mr. Shivang Shah for the petitioner has submitted that the respondent-Nagarpalika has passed the impugned orders beyond its jurisdiction and without giving any opportunity of hearing to the petitioner. He has submitted that in a catena of the decisions, the Apex Court has categorically stated that if there is no mistake of an employee and he receives the excess amount, then it is not recoverable. He has further submitted that before passing the impugned order, the Chief Officer has not even consulted the higher authority. He has submitted that there was no mistake while calculating the DA amount.

5.1 Mr. Shah has submitted that similar issue has already been decided by this court in various petitions. He has placed reliance on the decision of this court rendered in Special Civil Application No. 8437 of 2019 and allied matters on 04.05.2022 as well as the decision of a co-ordinate bench of this court rendered in Special Civil Application No. 20047 of 2018 on 08.03.2019. He has submitted that the authority has failed to appreciate the legal position as enunciated by the Apex Court in the case of State of Punjab Vs. Rafiq Masih, AIR 2015 SC 696 concerning the recovery of excess payment even if made, which enumerated that it is not open for the employer to recover any excess amount paid if the employee is superannuating within a period of six(6) months or has already superannuated. The authority by any means cannot compel the petitioners to sign any such document or undertaking, which is contrary to the settled legal position by creating undue duress on the employee and if any such undertaking even if signed cannot be enforced as the same is impermissible and illegal. It is further submitted that such principle of waiver would hence, be not applicable in such circumstances, where the employee has been compelled to act against the law and any such waiver